Climate change in Northwest Passage threatens indigenous rights

Simon Fuller, IBA Managing Editor

Mike Pompeo, the US Secretary of State, used a speech at an Arctic Council ministerial meeting in May 2019 to describe Canada’s claim to the Northwest Passage as ‘illegitimate’.

Pompeo’s comments have reignited a long-running Canada–US dispute about the Northwest Passage, the sea route to the Pacific Ocean through the Arctic Ocean.

Canada argues that the waters around the Arctic Archipelago, which makes up a large part of the Northwest Passage, are an internal waterway and under Canada’s legal jurisdiction. The US believes them to be an international strait, and thus open to vessels capable of moving through them – a view shared by the European Union.

The region’s changing climate has invigorated this dispute. With ice melting earlier each year and increasing periods of open water, routes previously unnavigable become traversable, making the Northwest Passage more viable as a commercial shipping route.

Gavin Giles QC, a partner at McInnes Cooper, explains that even cruise ships can traverse the Northwest Passage for many months of each year. ‘As a potential trade route from the far east to northwestern Europe, the Northwest Passage could offer substantially reduced voyage times compared to the Panama Canal and especially Cape Horn,’ he says.

Inuit communities are now being subject to an assault by nature created by humans

Steven Cooper
Partner at Cooper Regel, a member of Masuch Law

A challenge to the applicability of Canada’s jurisdiction over the Northwest Passage is one of a number of concerns facing the Inuit people, who are indigenous to the area. Giles describes the challenge as representing ‘a potentially grave threat to Inuits in the Northwest Passage, to the protections afforded them by Canadian law, and to their very citizenship.’

Kevin O’Callaghan, a partner at Fasken and Leader of the firm’s Indigenous Law practice, believes the Northwest Passage is unlikely to be considered an international strait, ‘given the relatively infrequent number of transits on the record, and the fact that most countries still seek consent from Canada prior to passage. The Northwest Passage does also not meet the functional test from the Corfu Channel case, which is used to determine international navigation.’

Irrespective of the result of the Canada–US dispute, the Northwest Passage’s Inuit are witnessing a transformation of their environment due to climate change. The resulting challenges are not only geopolitical.

In early 2018, Inuit Tapiriit Kanatami, Canada’s national Inuit organisation, published Nilliajut 2: Inuit Perspectives on the Northwest Passage, Shipping and Marine Issues. In the report, Inuit communities comment on the visible impact of the world’s changing climate and how it affects the Inuit way of life. Hunting, for example, is becoming more difficult. Inuit report more unpredictable weather too, with tropical storms occurring at unusual times of the year.

Beyond this, the physical transformation of the Northwest Passage means the prospect of increased traffic along it, including tourist vessels. For the Inuit this brings potential benefits but also concerns. Inuit communities note, for example, the harmful effects that waste dumped by ships or an oil spill could have for them and the wider ecosystem.

Steven Cooper is a partner at Cooper Regel – a member of Masuch Law – and a past Chair of the IBA Indigenous Peoples Committee, who through his work often visits the Northwest Passage. Cooper says that these communities, ‘are only just starting to recover from the first tentative colonial encroachment which started 150 years ago. They are now being subject to an assault by nature created by humans. The next insult causing further injury will be the introduction of commercial shipping in the Northwest Passage if that is to occur.’

‘The US has been preparing for this eventuality for decades,’ he adds. ‘China is not far behind and there is little doubt that any evolution of economic activity in the area will likely have devastating impact on land resources and people.’

International agreements and regulations covering the Arctic may go some way in resolving the question of sovereignty and in protecting Inuit communities. Multiple regimes of international law interact with each other in this regard, including human rights law, the Polar Code concerning shipping regulations and the work of the Arctic Council.

The UN Convention on the Law of the Sea (UNCLOS) was declared the ‘international legal framework’ for the Arctic Ocean by five Arctic coastal nations, including the US, in 2008. The US relies on UNCLOS for claims relating to the Northwest Passage, though has yet to ratify it.

More generally, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly in September 2007 and establishes a framework of minimum standards ‘for the survival, dignity and well-being of the indigenous peoples of the world’.

Canada, however, has yet to ratify UNDRIP. On 21 June 2019 its attempt to do so, Bill C-262, failed to pass the Canadian Senate. Bill C-262 would have provided rights to grant or refuse consent with respect to proposals that can affect indigenous peoples or their lands.

Federica D’Alessandra is Co-Chair of the IBA Human Rights Committee and founding Executive Director of the Oxford Programme on International Peace and Security at the Oxford Institute for Ethics, Law and Armed Conflict. ‘Only broad partnerships that bring together the sovereign and non-sovereign, as well as private and public entities, around rights-centred approaches and in fulfilment of international human rights standards, can offer true solutions to these crises,’ she says in regard to how to mitigate the impact on human rights when geopolitical disputes occur and where climate change causes significant upheaval.

Carl Söderbergh, Director of Policy and Communications at Minority Rights Group International, stresses the need for indigenous peoples to be involved in finding solutions. ‘Indigenous peoples’ right to meaningful participation in all matters concerning them has to be respected, as too must their right – now recognised in international norms – to free, prior and informed consent. The legal frameworks need to be in place – through legislation, land treaties etc – and the supervisory and enforcement bodies, again with indigenous communities being involved at all stages.’